Bipin Mahto & Ors vs The State Of Bihar on 26 July, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.475 of 2013
Arising Out of PS.Case No. -12 Year- 2004 Thana -BATHNAHA District- SITAMARHI

1. Bipin Mahto S/O Shivji Mahto Resident Of Village- Ranauli, P.S.- Bathanah,
District- Sitamarhi

2. Satendra Hathi S/O Ram Priya @ Ram Prit Hathi Resident Of Village- Ranauli,
P.S.- Bathanah, District- Sitamarhi

3. Barun Thakur S/O Late Bengai Thakur Resident Of Village- Ranauli, P.S.-
Bathanah, District- Sitamarhi

…. …. Appellant/s
Versus

1. The State Of Bihar

…. …. Respondent/s
with

Criminal Appeal (SJ) No. 573 of 2013
Arising Out of PS.Case No. -null Year- null Thana -null District- SITAMARHI

1. Mohit Baitha S/O Late Tapsi Baitha Resident Of Village- Ranauli, P.S.-
Bathanaha, District- Sitamarhi.

…. …. Appellant/s
Versus

1. The State Of Bihar

…. …. Respondent/s

Appearance :

(In CR. APP (SJ) No. 475 of 2013)
For the Appellant/s : Mr. Yogesh Chandra Verma, Sr. Adv.

Mr. Pushpendra Kumar Singh, Adv.

Smt. Divya Bharati, Adv.

Mr. Dinesh Jha, Adv.

Mr. Saroj Kumar, Adv.

For the Respondent/s : Mr. S.N. Prasad (APP)
(In CR. APP (SJ) No. 573 of 2013)
For the Appellant/s : Mr. Mr. Yogesh Chandra Verma, Sr. Adv.
For the Respondent/s : Mr. Abha Singh, (APP)

CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
ORAL JUDGMENT
Date: 26-07-2017

As both the above mentioned appeals arise out of the
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impugned judgment dated 06.06.2013 and order of sentence dated

07.06.2013, as such they are clubbed together and are being disposed

of by this single consolidated judgment.

2. Both the above appeals are directed against the judgment dated

06.06.2013 and order of sentence dated 07.06.2013, passed in

Sessions Trial No. 217 of 2006, by Shri Jagannath Rai, 1st Additional

Sessions Judge, Sitamarhi, by which the appellants were convicted

under Section 366 [part -II] and 120(B) of Indian Penal Code and

were sentenced to under go R.I. for ten years with a fine of Rs.

10,000/- each and in default of payment of fine S.I. for six months.

Apart from that appellant Mohit Baitha was also convicted under

Section 376 of Indian Penal Code and was sentenced to under go

further R.I. for ten years with a fine of Rs. 10,000/- and in default of

payment of fine R.I. for one year. Further it was directed that the fine

of Rs. 20,000/- imposed on appellant – Mohit Baitha is to be paid to

the victim. All the above sentences were directed to run concurrently.

3. Further it appears from the record that appellant Bipin Mahto

has taken the plea of being Juvenile and this Court vide order dated

08.01.2017 passed in Criminal Appeal No. 475 of 2013, directed him

to appear before the Juvenile Board, Sitamarhi, for determination of

his age and on direction of this Court, the age of appellant Bipin

Mahto was determined and a report of Juvenile Justice Board,
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Sitamarhi is on the record showing the age of appellant Bipin Mahto

09 years 09 months and 23 days at the alleged date of occurrence.

4. It appears from perusal of the records that Prosecutrix – Sabita

Kumari (P.W. 8) lodged a complaint petition being C-1-1453/2003 on

19.12.2003 with respect to occurrence of 30.11.2003 in the Court of

learned Chief Judicial Magistrate, Sitamarhi against all the appellants

as well as one Arun Baitha, which was later on sent to the police for

institution of a case under Section 156(3) of Cr.P.C., on the basis of

which Bathnaha P.S. Case No. 12 of 2004 was registered.

5. Prosecution case as per the complaint petition in short is that

she was married in the village Harpur and she was illiterate and for

last four months, she was living in her maike and the co-accused Arun

Baitha, resident of the village of prosecutrix, always used to tease her

but for prestige of her family, she used to keep mum and on

30.11.2003 in the evening, she went to attend a marriage ceremony in

the house of one Ramdhyan Baitha and when she was returning to her

house after attending the marriage ceremony, appellants Mohit Baitha

and Arun Baitha forced her to drink sarbat, initially she refused but

on insistence she took the drink, thereafter, she felt dizziness and

became unconscious. Further case is that appellant Mohit Baitha and

Arun Baitha got her boarded in the jeep, where other appellants,

namely, Bipin Mahto, Satendra Hathi, Barun Thakur were sitting
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from before. Further allegation is that she was taken to Simra (Nepal)

and was confined in a room and the appellant Mohit Baitha and Arun

Baitha, on the point of dagger and pistol committed rape on her and

took all her ornaments. It is also her case that as some of the villagers

were suspecting their presence, next morning, she was shifted by the

appellants to some unknown place, where in the night she managed to

escape from the clutches of the appellants. Further case of the

prosecutrix is that after coming over from the trauma, she informed

about the incident to her father and mother and, thereafter, the

complaint petition was lodged.

6. Police after investigation submitted charge-sheet against all the

appellants and one co-accused Arun Baitha and after cognizance, case

was committed to the Court of Sessions, which ultimately travelled to

the file of Shri Jagannath Rai, 1st Additional Sessions Judge,

Sitamarhi for trial and disposal.

7. It appears from perusal of the impugned judgment that later on

trial of Arun Baitha was separated and the same was registered as

Sessions Trial No. 538 of 2007.

8. During the trial, charges were framed against all the appellants

under Section 366 [part -II], 376 and 120B of the Indian Penal Code.

9. On behalf of the prosecution, altogether nine witnesses have

been examined and they are ; P.W. 1- Pappu Kumar (cousin brother of
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the prosecutrix), P.W. 2- Manish Kumar (brother of the prosecutrix)

P.W. 3- Gita Devi (mother of the prosecutrix) P.W. 4 – Gandhi Singh

(father of the prosecutrix), P.W. 5 – Ram Naresh Mahto (independent

witness), P.W. 6 – Ramdhyan Baitha, P.W. 7- Doctor Sudha Jha (who

examined the prosecutrix-victim girl) P.W. 8 – Sabita Kumari

(prosecutrix/victim) P.W. 9- Rakesh Kumar ( Investigating Officer).

10. Following documents have been admitted into evidence and

marked as Ext. 1- Medical Report, Ext. -2 complaint petition, Ext.

3- Registration of F.I.R. and Ext. 3/3A – Signature on formal F.I.R.

11. No oral evidence has been adduced on behalf of the defence.

However, certified copy of F.I.R of Bathanaha P.S. Case No. 111 of

2003, filed by the mother of co-accused Aruna Baitha has been

brought on record as Ext. A, by defence.

12. Learned trial court after conclusion of trial convicted the

appellants and sentenced them as stated above vide impugned

judgment and order of sentence.

13. Being aggrieved by the said judgment and order of conviction,

the appellants have preferred the present appeals.

14. In this case all the appellants have been convicted under

Section 366 [part-II] and 120B of the Indian Penal Code and appellant

Mohit Baitha has further been convicted under Section 376 of Indian

Penal Code by the learned Trial Court, relying on the evidence of
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P.W. 8 (victim girl) that she was provided with ‘sarbat’ and after

drinking the said ‘sarbat’ she felt dizziness and she became

unconscious and she was taken on jeep by appellant Mohit Baitha and

co-accused Arun Baitha and other appellants were in the jeep from

before and they took her to Simra (Nepal) the above evidence has

been corroborated by the evidence P.W. 1 and 2, who are brothers of

the prosecutrix and P.W. 3 and 4, mother and father of the victim.

Learned Trial Court has also relied upon the evidence of victim so far

she being raped by the appellant Mohit Baitha and co-acused Arun

Baitha.

15. Learned counsel for the appellants has assailed the judgment on

the ground that prosecution case is full of absurdities and

improbabilities as though the witnesses i.e. P.W. 1 and 2, who

happens to be brother of the prosecutrix, claims themselves to be

present in the barat in which the occurrence took place and in their

presence occurrence took place, further the evidence also shows that

P.W. 1 and 2 informed P.W. 3 and 4, who are mother and father of the

prosecutrix, about the occurrence but in spite of the knowledge about

the kidnapping of their daughter, they neither preferred to inform the

police nor any step was taken by them to search the prosecutrix rather

one set of evidence shows that she returned after 3-4 days after the

occurrence and another set of evidence shows that she was brought
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back after four days and the present case was lodged after two and

half months of occurrence. It has also been argued that it is the case of

prosecution that victim girl was raped by the appellant – Mohit

Baitha and one Arun Baitha at Simra (Nepal) but there is no

independent witness of Simra to show her presence at Simra (Nepal)

and the evidence of Doctor also does not support prosecution story of

rape.

16. It has also been argued that the evidence of Investigating

Officer shows that in spite of notice to the prosecutrix to appear

before the Magistrate for recording her statement under Section 164

Cr.P.C, she did not choose to appear. Further submission of learned

counsel for the appellant is that it is alleged that the appellants Bipin

Mahto, Satendra Hathi and Barun Thakur were sitting in the jeep from

before and they all have taken the prosecutrix in jeep to Simra (Nepal)

but as per F.I.R. itself prosecutrix was in unconscious position and in

such a situation, it is difficult to believe her evidence regarding the

identification of these appellants by the prosecutrix. Further there is

no material available on record showing that these three appellants

had any active role in kidnapping of the girl.

17. On the basis of above circumstance, it has been argued that the

conviction of appellants under Section 366A or 376 of Indian Penal

Code is not just and proper and is fit to be set aside.
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18. On the other hand, learned counsel for the state has submitted

that the materials available on record clearly show that prosecutrix

was provided with a glass of sarbat and after drinking the said sarbat,

she felt dizziness and became unconscious, thereafter, she was taken

to jeep. Evidence has also come that appellants Bipin Mahto, Satendra

Hathi and Barun Thakur was there from before. It has been argued

that the above evidence clearly shows that they had conspired for

kidnapping of the victim girl and taken her to Simra (Nepal). It has

also been argued that it is well settled that conviction under Section

376 Indian Penal Code can be based only on the sole testimony of

prosecutrix even in absence of corroboration of medical evidence and

in this case P.W. 8 (prosecutrix) has stated about commission of rape

by appellant Mohit Baitha and co-accused Arun Baitha and the same

is corroborated by the F.I.R, the earliest version of prosecution and

there is nothing in her cross-examination to discredit her evidence in

court, as such there is no infirmity in the impugned judgment, hence

the same does not require any interference.

19. In the above background, let me examine the materials

available on record.

20. Evidence of P.W. 1, cousin brother of the prosecutrix, shows

that he was present in the Barat, where the alleged occurrence took

place and the prosecutrix – Sabita Kumari was also there. His
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evidence also discloses that the victim girl was taken away by the

appellants. In his cross-examination in para -7, this witness has

admitted that the prosecutrix became unconscious and thereafter, the

appellants went there. This witness had admitted that he had not gone

with the prosecutrix and further stated that nobody went to the

hospital. Evidence of P.W. 2, who is brother of the prosecutrix, shows

that he was also present in the barat he has stated that the appellants

taken prosecutrix- Sabita Kumari on a jeep and further stated that they

had taken her to the hospital for treatment. His evidence further shows

that he came running and informed about the same to his father and

mother. The evidence of P.W. 3, who is mother of the prosecutrix

shows that her son came to her house and informed that the

prosecutrix was taken by the accused persons. Evidence of P.W. 4,

who is father of prosecutrix also shows that he was aware of the fact

that the appellants have taken away his daughter and was aware that

they have taken her to hospital but on close scrutiny of entire evidence

it appears that there is no evidence available on record to show that

they have made any effort to search the prosecutrix or made any

complaint with the police. However, the evidence of P.W. 1 and P.W.

2 shows that prosecutrix became unconscious and was taken for

treatment in hospital but in such a situation, normal conduct would

have been to rush to the hospital but prosecution evidence is silent on
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this point and no step was taken to search her. It appears from perusal

of evidence of P.W. 1 to 4 and 8 that prosecutrix returned back and

informed about the commission of rape on her by the appellant Mohit

Baitha and co-accused Arun Baitha.

21. In this case as stated above as per prosecution, occurrence took

place on 30.11.2003 whereas complaint petition was filed on

19.12.2003 i.e. after twenty days and that too after lodging of the

F.I.R by the mother of co-accused Arun Baitha on 17.12.2003 (Ext.

A)

22. Prosecution has examined two independent witnesses i.e. P.W.

5 and P.W. 6, who are villagers. Evidence of P.W. 5 shows that he

came to know that daughter of Gandhi Singh (P.W. 4) has fled away

with Arun Baitha from the village and later on he came to know that

they are at Simra (Nepal) and, thereafter, Ramashish Singh, Lalbabu

Singh, Gandhi Singh, Ramshrestha Hathi and Kailash Bhagat, went to

Simra and brought the prosecutrix as well as Arun Baitha to the

village. This piece of evidence is contrary to the prosecution story,

wherein it has been submitted that the prosecutrix returned back

herself after 3 to 4 days. P.W. 6 is another independent witness and in

his house, prosecutrix is said to have gone to attend the marriage

ceremony and from there as per the prosecution, the prosecutrix was

kidnapped and he has categorically stated that he does not know
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anything about the occurrence and Darago Ji has not recorded his

statement. This piece of evidence of the prosecution witness is also

not in conformity with the prosecution story and this witness is very

important witness, considering the fact that alleged occurrence of

kidnapping took place in his house. Further both the above witnesses

have not been declared hostile.

23. Apart from that Medical report and the evidence of doctor i.e.

P.W. 7 does not support the prosecution case as doctor has not found

any sign of rape or any injury either external or internal on the person

of the prosecutrix. On the other hand, she has found that the victim

was carrying pregnancy of twenty four weeks, though the prosecutrix

has been examined on 17.02.2004 i.e. after two and half months of the

occurrence, it is obvious that no sign of rape was found but that does

not make the prosecution case of rape unbelievable. Further as per the

medical report of the doctor, the prosecutrix was pregnant prior to

kidnapping.

24. It is well settled principle of law that on the basis of sole

testimony of prosecutrix, conviction can be made under Section 376

of Indian Penal Code, if it is otherwise found reliable and free from

any embellishment or doubt but in this case, there are so many

circumstances that casts a doubt about the veracity of prosecution

story as firstly the case itself was lodged after a lapse of twenty days
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and secondly the conduct of the family members of the prosecutrix is

itself doubtful. Further there is evidence of I.O. shows that in spite of

notices to the prosecutrix, she has not appeared before the Magistrate

for recording her statement under Section 164 Cr.P.C. coupled with

the fact that there is no corroboration of prosecution story of rape

either by the medical evidence of by any independent witness. All

these facts certainly casts a serious doubt on the entire prosecution

story.

25. So far delay in lodging of F.I.R and conviction on sole

testimony of prosecutrix is concerned, the same has been discussed by

Hon’ble Apex Court in its recent decision in the case of Md.Ali @

Guddu vs State Of U.P reported in 2015(7) SCC 272 in paras 21

and 27 to 30, which reads as under:-

“21. It is apt to mention here that in rape cases the
delay in filing the FIR by the prosecutrix or by the
parents in all circumstance is not of significance. The
authorities of this Court have granted adequate
protection/allowance in that aspect regard being had
to the trauma suffered, the agony and anguish that
creates the turbulence in the mind of the victim, to
muster the courage to expose oneself in a conservative
social milieu. Sometimes the fear of social stigma and
on occasions the availability of medical treatment to
gain normalcy and above all the psychological inner
strength to undertake such a legal battle. But, a
pregnant one, applying all these allowances, in this
context, it is apt to refer to the pronouncement
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in Rajesh Patel v. State of Jharkhand[5] wherein in
the facts and circumstances of the said delay of 11
days in lodging the FIR with the jurisdictional police
was treated as fatal as the explanation offered was
regarded as totally untenable. This Court did not
accept the reasoning ascribed by the High Court in
accepting the explanation as same was fundamentally
erroneous.

27. Be it clearly stated here delay in lodging FIR in
cases under Section 376 IPC would depend upon facts
of each case and this Court has given immense
allowance to such delay, regard being had to the
trauma suffered by the prosecutrix and various other
factors, but a significant one, in the present case, it
has to be appreciated from a different perspective.
The prosecutrix was missing from home. In such a
situation, it was a normal expectation that either the
mother or the brother would have lodged a missing
report at the police station. The same was not done.
This action of PW-2 really throws a great challenge to
common sense. No explanation has been offered for
such delay. The learned trial Judge has adverted to
this facet on an unacceptable backdrop by referring
to the principle that prosecutrix suffered from
trauma and the constraint of the social stigma. The
prosecutrix at that time was nowhere on the scene. It
is the mother who was required to inform the police
about missing of her grown up daughter. In the
absence of any explanation, it gives rise to a sense of
doubt.

28. That apart, the factum that the appellant
informed the mother of the victim that he had left the
prosecutirx at the door of her house also does not
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command acceptance. The recovery of the
prosecutrix by the brother and her friends also
creates a cloud of suspicion. We are not inclined to
believe the prosecution version as has been projected
that one Arif had informed the brother of the
prosecutirx that his sister was at his place but for
reasons best known to the prosecution, Arif has not
been examined. That apart, the persons who were
accompanying the brother have also not been
examined by the prosecution. Thus, the manner of
recovery of the prosecutrix from the house of Arif
remains a mystery.

29. Be it noted, there can be no iota of doubt that on
the basis of the sole testimony of the prosecutrix, if it
is unimpeachable and beyond reproach, a conviction
can be based. In the case at hand, the learned trial
Judge as well as the High Court have persuaded
themselves away with this principle without
appreciating the acceptability and reliability of the
testimony of the witness. In fact, it would not be
inappropriate to say that whatever the analysis in the
impugned judgment, it would only indicate an
impropriety of approach. The prosecutrix has
deposed that she was taken from one place to the
other and remained at various houses for almost two
months. The only explanation given by her is that she
was threatened by the accused persons. It is not in
her testimony that she was confined to one place. In
fact, it has been borne out from the material on
record that she had travelled from place to place and
she was ravished number of times. Under these
circumstances, the medical evidence gains
significance, for the examining doctor has
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categorically deposed that there are no injuries on the
private parts. The delay in FIR, the non- examination
of the witnesses, the testimony of the prosecutrix, the
associated circumstances and the medical evidence,
leave a mark of doubt to treat the testimony of the
prosecutrix as so natural and truthful to inspire
confidence. It can be stated with certitude that the
evidence of the prosecutrix is not of such quality
which can be placed reliance upon.

30. True it is, the grammar of law permits the
testimony of a prosecutrix can be accepted without
any corroboration without material particulars, for
she has to be placed on a higher pedestal than an
injured witness, but, a pregnant one, when a Court,
on studied scrutiny of the evidence finds it difficult to
accept the version of the prosecutrix, because it is not
unreproachable, there is requirement for search of
such direct or circumstantial evidence which would
lend assurance to her testimony. As the present case
would show, her testimony does not inspire
confidence, and the circumstantial evidence remotely
do not lend any support to the same. In the absence of
both, we are compelled to hold that the learned trial
Judge has erroneously convicted the accused-
appellants for the alleged offences and the High
Court has fallen into error, without re-appreciating
the material on record, by giving the stamp of
approval to the same.”

26. Further Hon’ble Supreme Court in the case of Raju v. State of

M.P. reported in AIR 2009 SC 858 has also considered on the point

of conviction under Section 376 of Indian Penal Code on the sole
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testimony of prosecutrix and held in para -9 as under:-

“9. The aforesaid judgments lay down the basic
principle that ordinarily the evidence of a
prosecutrix should not be suspect and should be
believed, the more so as her statement has to be
evaluated at par with that of an injured witness and
if the evidence is reliable, no corroboration is
necessary. Undoubtedly, the aforesaid observations
must carry the greatest weight and we respectfully
agree with them, but at the same time they cannot
be universally and mechanically applied to the facts
of every case of sexual assault which comes before
the Court. It cannot be lost sight of that rape causes
the greatest distress and humiliation to the victim
but at the same time a false allegation of rape can
cause equal distress, humiliation and damage to the
accused as well. The accused must also be protected
against the possibility of false implication,
particularly where a large number of accused are
involved. It must, further, be borne in mind that
the broad principle is that an injured witness was
present at the time when the incident happened and
that ordinarily such a witness would not tell a lie as
to the actual assailants, but there is no presumption
or any basis for assuming that the statement of
such a witness is always correct or without any
embellishment or exaggeration. Reference has been
made in Gurmit Singh’s case to the amendments in
1983 to Sections 375 and 376 of the India Penal
Code making the penal provisions relating to rape
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more stringent, and also to Section 114A of the
Evidence Act with respect to a presumption to be
raised with regard to allegations of consensual sex
in a case of alleged rape. It is however significant
that Sections 113A and 113B too were inserted in
the Evidence Act by the same amendment by which
certain presumptions in cases of abetment of
suicide and dowry death have been raised against
the accused. These two Sections, thus, raise a clear
presumption in favour of the prosecution but no
similar presumption with respect to rape is
visualized as the presumption under Section 114A
is extremely restricted in its applicability. This
clearly shows that in so far as allegations of rape
are concerned, the evidence of a prosecutrix must
be examined as that of an injured witness whose
presence at the spot is probable but it can never be
presumed that her statement should, without
exception, be taken as the gospel truth.
Additionally her statement can, at best, be
adjudged on the principle that ordinarily no
injured witness would tell a lie or implicate a
person falsely. We believe that it is under these
principles that this case, and others such as this
one, need to be examined.

27. Considering the principle settled by Hon’ble Supreme Court, it

appears that delay in the present case has not been explained, secondly

conduct of the prosecution witnesses are abnormal and thirdly

evidences of P.W. 5 and P.W. 6 are not in conformity with the

prosecution case and fourthly medical evidence does not support the
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prosecution case of rape. On the other hand, the defence story as per

Ext. A is that an F.I.R was lodged by Phulmati Devi, mother of co-

accused Arun Baitha being Bathnaha P.S. Case No. 111 of 2003 dated

17.12.2003, which shows mother of co-accused Arun Baitha has

lodged a written report on 11.12.2003, stating therein inter alia that

her son Arun Baitha was a student of matriculation and daughter of

Ganesh Singh (P.W. 4) Sabita Kumari was not happy with her

marriage and she got Arun Baitha agree to flee away with her, for

which, a Panchayati was also held in which son of Bilat Singh,

Kamlesh Singh and Rakesh Singh said that they will go by jeep on

which she declined and she went on foot on 04.12.2003, whereas,

Chandeshwar Singh, Kamlesh Singh and Rakesh Singh, Jitu Singh,

Lalbabu Singh had gone to Simra (Nepal) and apprehended Arun

Baitha and Sabita Kumari from the house of one Rasbihari Singh and

brought them back to village. F.I.R (Ext. A) also shows that as there

was night, she remained in Simra (Nepal) and when she came back to

her village, she came to know that her son has been confined in a

room of Badrilal Jha and the Sabita Kumari was confined in the house

of one Yogendra Singh, there she had gone to enquire about her son

along with his brother appellant – Mohit Baitha, where she was

abused and was paraded in the village in naked condition.

28. Defence story (Ext. A) found support from the evidence of
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P.W. 5, Ram Naresh Singh as he has also stated that he had heard that

daughter of Gandhi Singh (P.W. 4) has fled away with the co-accused

Arun Baitha and came to know that they were at Simra (Nepal),

thereafter, Ramashish Singh, Lalbabu Singh, Gandhi Singh,

Ramshrestha Hathi and Kailash Bhagat, went to Simra and brought

the prosecutrix as well as Arun Baitha to the village and Arun Baitha

was kept in the house of one Badri Jha next day he came to know that

the Arun Baitha has fled away. He has also admitted that Phulmati

Devi, mother of Arun Baitha has lodged a written report dated

11.12.2003 for kidnapping of her son, whereas, present complaint

petition has been filed on 19.12.2003 besides that prosecutrix has also

been examined on this point and she has admitted that mother of Arun

Baitha has lodged a case of kidnapping and murder against

Chandeshwar Singh, Kamlesh Singh, Rakesh Singh, Satendra Singh,

Jitender Singh. She has admitted in para -9 that Arun Baitha was a

student of matriculation and a suggestion was also given to her that

she has love affair with Arun Baitha for the she fled away and a

further suggestion was given that Arun Baitha was brought back by

her brothers and uncle and others in the village and he was assaulted

and murdered and mother of Arun Baitha was paraded in naked

condition in the village and, thereafter, she had lodged a case and,

thereafter, the present case was lodged, no doubt she has denied all
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these suggestions. Her evidence shows that at the time of occurrence,

she was carrying pregnancy of two and half months and she was aged

about eighteen years . P.W. 4, who is father of prosecutrix has also

admitted that prior to lodging of this case, mother of Arun Baitha has

lodged a case against Chandeshwar Singh and others for kidnapping

of her son and the said Chandeshwar Singh is his patidar. A

suggestion has also been given to this witness but he has denied the

suggestion. However, he has admitted that the Arun Baitha was a

student of matriculation.

29. Considering the entire discussions made above and the

decisions as referred above, it appears that there are several

circumstances, as discussed above, if considered closely with defence

story creates a doubt with regard to genesis and manner of occurrence

and story of rape. The delay of twenty days in lodging the F.I.R and

that too after the case lodged by the mother of co-accused Arun Baitha

(Ext. A) coupled with the fact that the conduct of the family members

of the prosecutrix after the occurrence and evidence of P.W. 5 and

P.W. 6 makes whole prosecution case improbable and unbelievanble.

29. As such to my opinion, the prosecution has miserably failed to

prove its case against the appellants under Section 366 [part -II], 376

and 120B of the Indian Penal Code.

30. Accordingly, these appeals are allowed, conviction and
Patna High Court CR. APP (SJ) No.475 of 2013 dt.26-07-2017

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sentence of appellants, namely, Bipin Mahto, Satendra Hathi and

Barun Thakur under Section 366 [part -II] and 120B of Indian Penal

Code and conviction and sentence of appellant – Mohit Baitha under

Section 366 [part -II], 376 and 120B Indian Penal Code , is hereby set

aside.

31. As the appellants are in judicial custody, they are directed to be

released forthwith.

(Vinod Kumar Sinha, J)

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